Citation Nr: 21032084 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 17-40 778 DATE: May 25, 2021 ORDER Entitlement to service connection for hearing loss in the right ear is denied. FINDING OF FACT There is no probative evidence of record supporting a finding that the increase in the Veteran's pre-existing right ear hearing loss was permanent. CONCLUSION OF LAW The Veteran's right ear hearing loss, which preexisted service, may not be presumed to have been aggravated by service. 38 U.S.C. §§ 1153, 5107; 38 C.F.R. §§ 3.102, 3.306. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from June 1982 to June 20, 1986. He had additional service from June 21, 1986 to March 1987, which VA determined was under dishonorable conditions for VA benefits purposes. In November 2018, the Board denied the issues of service connection for left shoulder disability and hearing loss in the left ear, and remanded the issue of service connection for hearing loss in the right ear for additional evidentiary development. In an April 2019 and July 2020 notice letters, the Veteran was requested to submit or authorize the release of any recent treatment records pertaining to his right ear hearing loss. In July 2020, VA received a completed VA Form 21-4142 from the Veteran identifying Florida Department of Corrections New River Correctional Institute as a treatment facility from April 1997 to the present. In a September 2020 report of contact with this facility, a representative from the medical records department confirmed to VA the receipt of the request and that the records will be mailed to VA. In a September 2020 notice letter, the Veteran was informed that attempts to obtain records from the identified facility have been unsuccessful and that no further action is needed if he has already provided treatment records from this facility to VA or if he would like the claim to proceed without these records; however, he can request an extension and attempt to obtain these records and VA will not issue a final decision on the claim for 15 days to allow for submission of an extension request. As of this date, the Veteran has yet to request an extension nor have any additional records from this identified facility been obtained and associated with the record since April 2015. Next, reasonable efforts, while unsuccessful, were made to provide the Veteran with a VA audiology examination to assess whether he has a current right ear hearing loss disability. As explained in an August 2020 VA medical opinion, the Veteran is incarcerated in a facility that does not allow inmates to leave without physical restraints, restraints must be removed from an incarcerated veteran upon entry into VA facilities per policy, there is not currently a VA examiner available to go to the prison where the Veteran is incarcerated, and the specific equipment required for audiology examinations is too large to be transported. Furthermore, attempts to schedule the Veteran for a VA audiology examination in March 2011 were unsuccessful for the same reasons as explained above in 2020. VA has satisfied its duty to assist an incarcerated veteran. The case was also readjudicated in a November 2020 supplemental statement of the case (SSOC). For the reasons discussed above, there was substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The case has been returned to the Board for appellate review. As a result, this claim on appeal will be decided based on the evidence of record. Entitlement to service connection for hearing loss in the right ear The August 1981 enlistment examination report shows that hearing loss in the right ear for VA purposes was noted, particularly at the 4000 Hertz range. See 38 C.F.R. § 3.385 (2020). His right ear pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 5 25 60 Because his right ear had a level of hearing loss sufficient to meet the criteria to be considered a disability for VA purposes at entry, 38 U.S.C. § 1153 and 38 C.F.R. § 3.306 control this clam. Service connection is warranted if the preexisting disorder was aggravated by a veteran's active service. A preexisting injury or disease will be presumed to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability was due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). There must be clear and unmistakable evidence that the increase in severity was due to the natural progression of the disease. The record shows that the Veteran's hearing loss increased in severity during service. An audiogram from August 1982 shows the following: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 5 40 70 In an August 1984 audiogram, the following results were obtained: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 5 35 55 In a March 1985 audiogram, which is the last audiogram from his period of honorable service, the results were: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 15 50 75 However, there is no probative evidence of record showing that the increase was permanent. In June 2017, a VA audiologist noted that there was a "clinically significant hearing threshold shift" during service for the Veteran's right ear. She stated that there was "[m]oderate probability of military noise exposure" due to his occupation of electrician's mate. She noted the notations in the Veteran's correctional institution medical records from 2015 where he complained of longstanding hearing loss that was worsening, but stated that only subjective complaints were documented. She stated that she was "unable to give an opinion as to whether the Veteran's pre-existing right ear hearing loss was permanently aggravated beyond the normal progression as a result of in-service noise exposure." Because she was able to explain why she could not provide an opinion, the report is adequate. Jones v. Shinseki, 23 Vet. App. 382, 389-90 (2010). She explained that she could find no audiometric threshold results in the record other than those from active duty, which were conducted approximately 30 years ago. She stated, "[t]herefore, it is unknown if the increased thresholds noted during military service were permanent in nature." She stated, [t]he significant hearing threshold shift noted during active duty should be confirmed with a current calibrated [a]udiological examination before an opinion should be given." Although the audiologist stated that a specific test be provided, another remand is not necessary in this case. VA's attempts to provide the Veteran with an audiological evaluation are documented above. Its duty to assist has been fulfilled. See Daves v. Nicholson, 21 Vet. App. 46 (2007). The Veteran has provided lay statements in support of his claim. In August 2010, he stated that he thought his hearing loss occurred during his first period of service. In May 2011 he stated that he entered service with a waiver for his hearing loss and was given hearing protection. He described his noise exposure and stated that his hearing deteriorated in service. He stated that he could not get his hearing tested while incarcerated. He described how he had problems hearing the television or in conversations. Although he is competent to describe his symptoms, and his statements are credible, he is not competent to state whether the increase in hearing loss he experienced was permanent. This is a determination that requires specialized experience that he does not possess. There is no probative evidence in the record showing that the increase in severity of right ear hearing loss in service was permanent. Therefore, the claim for service connection for hearing loss in the right ear is denied. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Carter, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.